OMBENI JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: MWANPAMBO. J.A., KIHWELO. J.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 625 OF 2022 OMBENI KESSY @MATATA............... ..... .................................. APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) rsimfukwe. J.1 dated the 5th day of October, 2022 in Criminal Appeal No. 28 of 2022 JUDGMENT OF THE COURT 19th & 24th March, 2025 MWANPAMBO. J.A:. The District Court of Moshi at Moshi convicted the appellant Ombeni Kessy @ Matata of rape of BM, a girl aged 15 years and a student at Mamba Day Secondary school in Moshi District. According to the charge, the offence was allegedly committed at Mamba area on diverse dates and months in the year 2020 to the young girl who, we shall be referring to her as BM, or the victim or PW2 to hide her identity. As the appellant disassociated himself from the accusations, the prosecution called three witnesses to prove their case. The first of the witnesses was Anna Godchance (PW1); the victim's mother who got information from the school concerning her daughter's lateness in reporting to school during morning hours. That prompted PW1 to go to the school and, upon interrogation, the victim disclosed to her that she used to visit the appellant regularly in the morning at his house where she engaged in sexual intercourse before going to school and that she did alike during evening hours. With that revelation, the matter was reported to the police and investigated by WP 2133 Staff Sergeant Mariam (PW3) who also tendered a PF3 obtained at the police station for the victim's medical examination at Kilema Hospital. At the hospital, the victim was examined by Dr. Dickson Gambo who, upon examination, posted his findings in a PF3 revealing that the victim had lost her hymen which was indicative of penetration. Although the medic did not appear before the trial court as a witness, the PF3 was tendered in evidence by PW3 and admitted as exhibit P3. In her evidence, PW2 recounted how she came into encounter with the appellant who was a cobbler in the village to whim she once took her shoes for mending. According to PW2, that encounter developed into an intimate relationship whereby the appellant had regular sexual intercourse with BMV At that time, PW2 was staying with her grandmother. BM had it that, at the appellant's insistence coupled with some monetary gifts, she made regular visits to the appellant's home in the mornings before going to school. She did alike later during evenings after school hours before going to her grandmother. She only stopped doing so after the appellant's daughter also a student at Mamba Day Secondary school discovered the goings-on between her father and PW2. Despite the appellant's defence distancing himself from the accusation, the trial court found proved beyond reasonable doubt that he was guilty of rape and proceeded to sentence him to 30 years' imprisonment. On appeal, the High Court at Moshi sustained that finding and dismissed the appellant's first appeal. Still discontented, the appellant has instituted the instant appeal on six grounds in his memorandum of appeal. However, the determination of the appeal turns on the 6th ground raising the complaint that the case by the prosecution was not proved beyond reasonable doubt. It is to be observed at once that, by this ground, the appellant seeks to assail the concurrent finding of fact by the first appellate court and the trial court on his guilt. It is settled law for which we need not cite any authority holds that, second appellate courts as we are rarely interferes with such finding unless satisfied that such concurrence is a result of misapprehension, or non-direction of the evidence on record causing a miscarriage of justice. At the hearing of the appeal, the appellant appeared in person, unrepresented. Due to his challenge in addressing the Court, he simply beseeched us to consider the grounds in the memorandum of appeal and allow his appeal. The respondent Republic was represented by Ms. Rose Sulle, learned Senior State Attorney and Mr. Ramadhani Kajembe, learned State Attorney. It was the latter who addressed the Court. Before doing so, the learned State Attorney drew our attention to the trial court's judgment in particular, page 35 of the record of appeal revealing an omission to convict the appellant after finding him guilty of the charged offence. Addressing the Court on that aspect, the learned State Attorney did no better than refer to the Court's decision in John Naoyo & Another v. Republic [2024] TZCA 120 (23 February, 2024), TANZLII for the proposition that, the omission to convict an accused person following a finding of guilt is an incurable irregularity rendering the judgment a nullity for contravening the mandatory provisions of sections 235 (1) and 312 (2) of the Criminal Procedure Act (the CPA). By reason of the omission, Mr. Kajembe argued, there was no valid appeal to the High Court from an invalid judgment which rendered the proceedings before the High Court a nullity. So was its decision from which the instant appeal has emanated. Going forward, the learned State Attorney invited the Court to invoke its revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act (the AJA) by nullifying proceedings post the finding of guilty and quashing the trial court's decision with a direction for it to compose a fresh judgment in compliance with section 235 (1) and 312 (2) of the CPA. Similarly, the learned State Attorney urged the Court to do alike with the proceedings before the first appellate court simultaneous with the resultant judgment. At the Court's prompting, Mr. Kajembe was unrelenting that, notwithstanding the introduction of overriding objective to the CPA, the omission to convict an accused is a fatal irregularity which can be glossed over under the guise of the overriding objective principle. According to him, even though in John Naoyo, the Court had no regard to the overriding objective, it could have arrived at the same conclusion had the same been brought to its attention and considered as such. After concluding his submissions on the issue raised, we invited Mr. Kajembe to address the Court in relation to the merits of the appeal should we disagree with him on the issue raised. Mr. Kajembe supported the appeal and conceded that the case against the appellant was not proved due to the variance between the charge and evidence in relation to the place where the offence was committed. Elaborating, the learned State Attorney pointed out that, whereas the particulars in the charge alleged that the offence was committed at Mamba area, there was contradictory version from the prosecution witnesses in that regard ranging from Mamba Day to Mrieni area. Mr. Kajembe pointed out that, while aware of the contradictory evidence on the place, the prosecution did not seek to have the charge amended with a view to reflecting a correct place considering that it was one of the matters in dispute listed during the preliminary hearing. The Court's decision in Cheni Vareli v. Republic [2024] TZCA 1187 (4 December 2024) TANZLII, was cited to argue that, by reason of the variance, the prosecution which had the burden to prove its case, did not discharge that burden and thus, the finding of guilt on which the two courts below concurred cannot stand and the same ought to be set aside. Having heard the learned State Attorney, we agree with him on both aspects; passing sentence without entering conviction after finding the appellant guilty as well as the variance between the particulars in the charge and the evidence adduced by the prosecution. However, we do not, with respect, go along with him on the consequences befalling omission to convict the appellant. It is instantly clear that in our decision in John Naoyo, the Court held that, the omission to convict an accused person after finding him guilty a fatal irregularity contravening the provisions of section 235 (1) and 312 (2) of the CPA. Put it differently, the omission renders the judgment incomplete considering that, conviction is one of the essential components of a judgment following pronouncement of a finding of guilt before passing the appropriate sentence. It is remarkable that in Mussa Mohamed v. Republic, Criminal Appeal No. 216 of 2005 (unreported), the Court was faced a similar issue involving omission to convict an accused after finding him guilty. Stressing the need for trial courts ensuring strict compliance with the law, the Court found the omission to convict an accused person curable. It did so having drawn inspiration from one of the principles of equity that is; equity regards as done that which ought to have been done. It cannot be doubted that, once an accused person is found guilty, what follows thereafter is conviction before passing the corresponding sentence. Logically, where a sentence is passed without the trial court convicting the accused, as it were, is regarded that there was conviction against the accused. It is significant that, the Court's decision in Mussa Mohamed was rendered on 27 November 2005 and followed subsequently in Twaha Salum v. Republic [2020] TZCA 1799 (6 October 2020), TANZLII. In that decision, the appellant raised a similar complaint involving omission to convict him on both counts the trial court had found him guilty. The Court rejected that complaint relying on Mussa Mohamed (supra). Eighteen years later, the parliament made amendments to section 4 of the CPA by adding section 4A which provides: "4A - (1) The overriding objective o f this A ct sh all be to facilitate the just\ expeditious, proportionate and affordable determ ination o f a ll m atters governed by this Act. (2) The court shall, in the exercise o f its powers under this A ct o r the interpretation o f any o f its provisions, seek to give effect to the overriding objective specified in subsection (1 )." Closely examined, that amendment appears to us to echo the Court's decision in Mussa Mohamed to the extent it relates to the issue raised by Mr. Kajembe. Apparently, as conceded by the learned State Attorney, section 4A of the CPA which came into force on 19 November 2023; a period of three months preceding the Court's decision in John Naoyo, the Court's attention was not drawn to the section neither did it have the benefit of inputs from counsel in that regard. Be it as it may, plain as it is, the scope of overriding objective under section 4A of the CPA is, amongst others, to facilitate the just and expeditious determination of all matters governed by the CPA. Mindful of the Court's decision in Mussa Mohamed and the overriding objective, we have asked ourselves whether the omission to convict an accused person upon being found guilty is a fatal irregularity which cannot be cured by regarding as done what ought to have been done. In our view, the overriding objective should be applied in the same way as equity by treating that conviction which precedes sentence must be regarded or deemed to have been done regardless of the omission to do so as it were in this appeal. With respect, we are increasingly of the view that the position would have been different had there been omission to pass a sentence following conviction. Unlike Mr. Kajembe, we do not share his view that had section 4A of the CPA been brought to the Court's attention in John Naoyo, it could have reached the same conclusion on the effect befalling omission to convict an accused person. At any rate, considering that the respondent Republic through Mr. Kajembe supported the appeal anyway, we are at a loss agreeing with him on the way forward. We say so not oblivious of the fact that the path championed by the learned State Attorney will entail the trial court composing a fresh judgment for the sole purpose of entering conviction and passing same sentence which the appellant is currently serving after being found guilty of the charged offence. That seems to us to be defying logic and common sense but above all militates against the spirit behind the introduction of the overriding objective. Not pretending to be Jewish prophets, the route urged by the learned State Attorney will, in the aftermath, attract an appeal to the High Court and possibly to this Court when it is now clear that the conviction was unsafe. It does not accord with facilitating the expeditious determination of matters before the court in the spirit of the overriding objective. Unfortunately, Mr. Kajembe did not see logic on this and we can only say that we are unable to agree with him in that regard. On the contrary, we take the view that logic, common sense and justice dictate in favour of determining the appeal once and for all to which we now turn our attention. For a start we wish to reiterate that, variance between evidence and the charge on a material respect is fatal to the prosecution. It has been held to be tantamount to the prosecution having failed to discharge its legal burden; proof beyond reasonable doubt. There is a thick wall of authority on this represented by the Court's decisions in, amongst others, Cheni Vareli v. Republic (supra), Noel Gurth a.k.a Bainth & Another v. Republic, Criminal Appeal No. 339 of 2013 and Issa Mwanjiku v. Republic [2020] TZCA 1801 (6 October 2020) TANZLII. One of the particulars in the charge laid at the appellant's doors was that the offence he was charged with was committed on divers dates and months at in the year 2020 at Mamba area, Moshi District. The appellant denied the accusations. During the preliminary hearing, the prosecution narrated facts of the case as required by section 192 (1), (2) and (3) of li the CPA. One of the facts related to the scene of the crime; Mamba area which was disputed by the appellant. That means, since the place of commission of the offence was in dispute, the prosecution was under a duty to prove not only commission of the offence but also the place at which such offence was committed. Since the case involved a sexual offence of a tender age victim true evidence had to come from the victim in line with the Court's decision in Selemani Makumba v. Republic [2006] T. L. R 379. The prosecution was bound to prove through its witnesses, in particular PW2, the essential ingredients in the offence, that is, penetration and the age of the victim. It was also bound to prove that penetration was by a male sexual organ of no other than the appellant as well as the place indicated in the particulars of the offence in the charge. At the beginning of her evidence found at page 12 of the record of appeal, PW2 is recorded to have told the trial court that in September 2020, the appellant raped him at Mamba Day. It is common ground that Mamba Day was the name of the school that PW2 attended. A little later at the same page, PW2 is recorded to have said that she met the appellant near his house at Mrieni area. We note that, PW2's evidence as to the place, was a continuation of the conversation the appellant had with her before she was allegedly lured by the appellant into a sexual intercourse. She continued: "... Accused asked why forget [?]. I told you to pass through m y home. I told him [that] am afraid o f my grandmother. Then he asked me to go to h is home to help him. I went to his home. He asked me to wash dishes..." It goes without saying that, by his home, it must have been the appellant's home at Mrieni area which was not the same as Mamba area in the absence of any explanation that Mrieni was part of Mamba area. It is in evidence also that, the following day, PW2 passed by the appellant's home in the morning as she was proceeding to school and, the appellant allegedly had sexual intercourse with her at his home. PW1 for her part told the trial court that the appellant stayed at Mrieni area where he had sex with PW2. It will be clear from the foregoing that, neither PW2 nor PW1 told the court that the offence was committed at Mamba area consistent with the particulars as to place in the charge. Neither did anyone offer any explanation that Mrieni area was one and the same place as Mamba area. Otherwise, as submitted by Mr. Kajembe, the prosecution was bound to have the charge amended so as to reflect the correct place where the offence was committed in terms of section 234 (1) of the CPA. As this was not done, the prosecution evidence left doubt as to the place of the crime which was at variance with the particulars in the charge. Mr. Kajembe urged, and rightly so in our view that, as there was doubt as to the place where the offence was allegedly committed, such doubt ought to have been resolved in the appellant's favour which should have resulted into an acquittal. Had the two courts below have regard to the variance between evidence and charge as to the place where the charged offence was allegedly committed, they could not have concurred as they did in their finding of guilt of the appellant. It cannot be doubted that, such concurrence was, but a result of misapprehension and non­ direction of the evidence on record which occasioned a miscarriage of justice by making an unwarranted finding of guilt resulting into the appellant being sentenced to 30 years' imprisonment. It is for the foregoing we are constrained to interfere with erroneous concurrent finding and set aside it and substitute it with a finding of not guilty. In the event, we allow the appeal on the sole ground argued by the learned State Attorney. Consequently, the sentence of 30 years imprisonment meted on the appellant is hereby set aside. The appellant shall be released forthwith from custody unless held therein lawfully. DATED at MOSHI this 22nd March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 24th day of March, 2025 in the presence of the Appellant in person and Ms. Ms. Julieth Komba, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. \ 1 i: | I \ / \ "v . v v i to / J ),, S. P. MWAISEJE ; / Ag. DEPUTY REGISTRAR COURT OF APPEAL